Public Bill Committee

[John Bercow in the Chair]

John Bercow: In common with my co-Chairman, I am content that right hon. and hon. Members should take off their jackets if they wish.

Clause 7

Chambers: jurisdiction and Presidents

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Brooks Newmark: It is a delight to see you in the Chair, Mr. Bercow.
I was in full flow at the end of this morning’s sitting, but I shall get to what I was hoping to ask the Minister. I was surprised at a point that she made in response to my hon. Friend the Member for North-West Norfolk. She suggested that it would be best to have a consultation after the Bill has come to the House. I am curious about that practice. I appreciate that I am a fairly new boy, but would it not be better to have a consultation, as my hon. Friend suggested, prior to the Bill coming to the House, rather than afterwards?

Vera Baird: I, too, am delighted to see you in the Chair, Mr. Bercow; it is wonderful to serve under your chairmanship again. I mentioned the previous Bill this morning, but we shall not compete with 925 clauses.
The hon. Member for Braintree asks a germane question. However, there has been a sizeable amount of consultation and it is still ongoing. It has given us the confidence to introduce the Bill into the Lords, which, again, has done a good job of refinement and already ensured that interest groups fed into the process. We believe that we are fully informed and that we can put forward a sufficient framework to get the new structure on the move. Thereafter, there will be a huge amount of detail that will require yet further consultation. That is the process that we have adopted; I hope that that reassures the hon. Gentleman.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9

Review of decision of First-tier Tribunal

Henry Bellingham: I beg to move amendment No. 40, in clause 9, page 6, line 11, after ‘review’ insert ‘on any point of law’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 45, in clause 11, page 8, line 24, after ‘any’ insert ‘question of fact or’.
No. 46, in clause 11, page 8, line 24, after ‘of’ insert ‘fact or’.
No. 49, in clause 12, page 9, line 34, at end insert
‘or is manifestly unreasonable on the facts’.

Henry Bellingham: It is a great pleasure for me to serve under your chairmanship for the first time, Mr. Bercow. I look forward to this Committee being happy and constructive.
Clause 9(1) states:
“The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1)”.
My amendment probes the powers of the first-tier tribunal to review its own decision. What is the scope of that power of review? Is it merely limited to points of law or does it go beyond that to evidential matters? If it is only a power of review, does it refer purely to formal matters or does it extend to something more substantial?
Presumably, the essence of the subsection is to ensure that the only cases that go to appeal will be those that really need to—the power is to enable minor errors to be corrected swiftly and informally. I recall from my time at the Bar that there are certain rules of procedure allowing magistrates courts, for example, to overturn their own decisions quickly within a certain period. I believe that there are other precedents as well. Will the Minister say what other precedents there are for the correction of minor mistakes without the need for a full appeal?
If the power is all part of trying to make the tribunal system more informal, user-friendly and generally more efficient, we would support it. However, I should be grateful if the Minister enlightened us further. These are probing amendments.

Simon Hughes: There are four amendments in the group, but only the lead amendment relates to the clause; the other three relate to clauses 11 and 12. I do not support the first amendment in the group, because I believe it is important that there should be a general power of review left to the lower-level tribunal. That is something that tribunals need to do, because there may be factual inaccuracies or information given may need to be corrected. There are all sorts of reasons why it is sensible for the same tribunal to return to a matter if something is pointed out, whether on direction from elsewhere or, as the Bill says, instigated by the tribunal. That process should not be fettered. I understand that, at the moment, although the Minister will no doubt correct us, such a return is generally likely to be on points of fact, evidence or procedure, but it could be on a point of law as well if that were necessary.
The more substantive matters are covered by amendments Nos. 45, 46 and 49, which would allow a right of appeal to the upper tribunal, and not only on a point of law. That is a significant matter. There is merit in amendment No. 49, which would allow a right of appeal not just on a matter of law, but in respect of where the facts did not bear out or justify the decision, or on a question of fact with the leave of the higher tribunal. However, I am nervous about the idea that factual matters cannot be appealed against and that only legal matters can be appealed against. There are all sorts of cases, from past experience, where the facts do not lead to the tribunal’s conclusion. I have been involved in some cases like that and I am sure that Committee colleagues have, too.
I realise that this is not a new matter—like most things in the Bill—because it has already been to the House of Lords and there has already been at least one set of discussions on it. However, a fairly strong case was put in the Lords for ensuring that there was a wider power of review by the upper tribunal of the lower tribunal. If we are going to keep things in the tribunal system and prevent them from going to the Court of Appeal, or from going outside the tribunal system to a higher court, which is more expensive, would take longer and so on, we should allow the two levels of tribunal to sort things out as much as possible.
One does not want the ability to have a completely new run of the case at the upper tribunal, in the same way as it was run in the lower tribunal. One should not be able simply to appeal for the sake of it, with no check or balance. At the moment, in your constituency, Mr. Bercow, as in mine, many parents will have received letters telling them that their child cannot go to the school that was the family’s first choice. An appeal system is permitted in such cases in almost every school, apart from—anomalously—city technology colleges, where there is no appeal system, which is an injustice that has never been corrected. Many people appeal against such decisions as a matter of course, simply because they want a review and cannot believe that they should not get into the school that is near them. I understand that we do not want a tribunal system that allows an appeal as a matter of course, in effect, to a similar body, although one tier up, simply to hear the facts. The onus is on the Government to argue for such a restriction. I hope that the Minister is sympathetic, at least to amendment No. 49 and, if not, to a variant of amendment No. 45, but resists amendment No. 40.

Vera Baird: This is about the tribunal’s review powers and the right of onward appeal. The first tier tribunal can be reviewed or appealed against. Appeals are only to correct errors of law or to clarify the law, but essentially they are to correct accidental errors. The hon. Member for North-West Norfolk has put his finger on what the review panel is about. A review can be done either through the tribunal’s own initiative or on application by a person who has a right of appeal. As he said, the point is to ensure that only those cases that lead to appeal go there.
There are parallels. The hon. Gentleman referred to the civil procedure rules. Rule 40.12 provides for slips and omissions in civil courts to be corrected without the need for an appeal. Section 155 of the Criminal Courts (Sentencing) Act 2000 provides a slip rule for the criminal courts to vary or rescind a sentence within 28 days. There is a similar power in section 142 of the Magistrates’ Courts Act 1980. Those are the precedents that he sought from me.
Similar amendments were tabled in the House of Lords. We modified the review provisions to make sure that they were not too wide. They are now subject to tribunal procedure rules that can be used, for example, to stop frivolous applications for review for the sake of it—of the sort that the hon. Member for North Southwark and Bermondsey conjured up in his analogy of school appeals. I hope that I have satisfied him about reviews.
As for broadening the scope of appeal to the upper tribunals, the pattern is that the first tier is to hear appeals from the decision maker. It will consider all the evidence. It will make findings of fact and, where necessary, law. It would be completely disproportionate to set up another tribunal that could rerun that. However, if the first tier tribunal gets the law wrong or substantive issues of law need an authoritative ruling, the upper tribunal is there to deal with such matters. Without it, those rulings would have to go to the High Court or the Court of Session to be made. It is exactly the model that we are used to through the employment tribunals, the Employment Appeal Tribunal and the social security commissioners. It is straightforward and flexible.
The hon. Member for North Southwark and Bermondsey mentioned manifestly unreasonable conclusions on the facts and the importance of having a ground of appeal wide enough to stop those automatically from going out into the more expensive, more complex and longer procedure of judicial review. We feel confident that our error of law is wide enough to deal with manifestly unreasonable conclusions on the facts. I hope that both hon. Gentlemen will accept that we have struck a fair and proportionate balance and that the amendments can be withdrawn.

Henry Bellingham: I am grateful to the Minister for her explanation of the amendments to which I spoke earlier. Further to the point made by the hon. Member for North Southwark and Bermondsey, will the hon. and learned Lady comment on the Tsfayo case that was raised in the other place by Lord Maclennan of Rogart? It is not sub judice; the case was heard before the European Court of Human Rights. The Tsfayo party won the case. The decision was that the facts could be brought forward on appeal, not only a point of law. Will she comment on what was discussed in the House of Lords? I understand that her colleague said that the Government would provide more detail about it at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

Clauses 10 and 11 ordered to stand part of the Bill.

Clause 12

Proceedings on appeal to Upper Tribunal

Henry Bellingham: I beg to move amendment No. 50, in clause 12, page 9, line 36, leave out ‘may (but need not)’ and insert ‘must’.

John Bercow: With this it will be convenient to discuss the following amendments:
No. 51, in clause 12, page 9, line 37, leave out ‘if it does,’.
No. 53, in clause 14, page 11, line 46, leave out ‘may (but need not)’ and insert ‘must’.
No. 54, in clause 14, page 12, line 1, leave out ‘if it does,’.

Henry Bellingham: The principal amendment is a simple probing amendment that would replace the word “may” with the word “must”. The others are consequential on it. If the upper tribunal decides against the lower tier, it is surely not the case merely that the upper tribunal may be able to set aside the decision. Rather, surely it is the case that it must set the decision aside. There should not be any “mays”, “perhapses” or “coulds”; the word should be “must”. That would represent better drafting and would be altogether neater and clearer.

Vera Baird: The question is one of the discretion to set a decision aside when the upper tribunal finds an error of law, and I remind the Committee that we are concerned with matters relating to the senior judiciary. An error of law might be found that none the less does not render the corresponding decision incorrect. To force the upper tribunal to set the decision aside in that situation would clearly not be wise. I hope that those few words of explanation will persuade the hon. Gentleman to withdraw his amendment.

Henry Bellingham: I am in a good mood, because it is a lovely spring day. The Minister has made the Government’s intention clear. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clause 13

Right to appeal to Court of Appeal etc.

Henry Bellingham: I beg to move amendment No. 52, in clause 13, page 10, line 30, at end insert—
‘(7A) The Lord President may, as respects an application under subsection (4) for which the relevant appellate court is the Court of Session, by order make provision for leave not to be granted on the application unless the Upper Tribunal or (as the case may be) the Court of Session considers—
(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the Court of Session to hear the appeal.’.
The amendment is on the same subject matter as the clause title and was recommended by the Law Society of Scotland, of whose opinions I believe we should take due note. It is an eminent body and it should know what it is talking about. It is concerned that clause 13 does not contain a provision relating to the Lord Presidency and the Court of Session.
In the House of Lords, Baroness Ashton kindly said that she would consider the equivalent amendment carefully, positively and with an open mind. The reason why we have tabled the amendment again is to remind the Minister of those commitments, and I hope that in the spirit of good will that is permeating the Committee the Minister will accept the amendment.

Vera Baird: The amendment would extend to the Court of Session the possibility of limiting second appeals in the way in which they are limited for the rest of the UK. The limitation is established in England, Wales and Northern Ireland, but there is no equivalent provision for Scotland. The hon. Gentleman is right: his noble colleague, Lord Kingsland proposed the same amendment in the other place, and my noble Friend, Baroness Ashton undertook to consult the Lord President and the Scottish Executive.
As a result of the consultation, we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland across all Scottish civil courts. I hope that the hon. Gentleman agrees with that conclusion and can be persuaded to withdraw his amendment.
When the hon. Gentleman referred to the Tsfayo case, he referred to a similar undertaking made by my noble Friend, Baroness Ashton to give further information about the case. I shall write to him about that.

Henry Bellingham: I welcome what the Minister has said. As we have such good will from her I hope that at some stage she will say that she will come back on Report with a Government amendment to satisfy those points. Perhaps she can consider what I have said in the light of tabling a Government amendment at that stage if she feels that it is possible. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14 ordered to stand part of the Bill.

Clause 15

Upper Tribunal’s “judicial review” jurisdiction

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: We are now moving into an important part of the Bill, which relates to judicial review. I do not want to anticipate some amendments that I have tabled to clause 22, which I feel are very important, but I want to set the scene and to point out to the Minister that judicial review is an important part of our jurisprudence and whole legal system.
Any student at the Bar or trainee solicitor is taught about judicial review from the earliest stage. It is a vital part of our law and this piece of the Bill has to be regarded in that context. Will the Minister say a bit more about how the judicial review process will work and give us a little more detail? How often does she expect it to be used? I do not want to go into the detail of what we will discuss on clause 18, where we will consider the limits of jurisdiction, but clause 15(1) sets out exactly what the power will be and what kinds of relief will be available under judicial review. I do not want to anticipate my amendments to clause 18, because they are the ones that we feel strongly about. However, all these clauses are of profound importance and I am anxious that we should not let them go by without some explanation from the Minister. I would be grateful if she could give that.

Vera Baird: Essentially, the point of enabling the judiciary to transfer cases from the normal judicial review jurisdiction into the upper tribunal is to harness the expertise that is likely to be available in that forum on the special kinds of business that the tribunal system takes care of. The provisions do not remove or resist judicial review, but make it possible for selected judicial reviews that would normally be heard before the High Court to be dealt with in the upper tribunal. The powers will be the same as those of judicial review, so the fact that it is in the tribunal system does not mean that there will not be the power to grant mandatory orders, prohibition, quashing orders, declarations or injunctions. The hon. Gentleman will recall from Second Reading that the range of judiciary available to deal with quasi-judicial reviews in the upper tribunal is restricted to the High Court and those approved by the chief justices.
We expect the power to be used comparatively rarely—dozens of times at most and certainly not in large numbers—and that its use is likely to be confined to technical situations that would be better dealt with by technically expert people.

Simon Hughes: The Minister is right, as is the hon. Member for North-West Norfolk. This is an important development, which I do not resist. Can the Minister say whether it is expected that this will be a quicker procedure and, as many assume, a cheaper one? When thinking about judicial review, people are always concerned about the potential cost implications and the delay. There is a linked question which, although we may debate it later, is relevant to this set of clauses, of which clause 15 is the first. Will legal aid be available for judicial review proceedings in an upper level tribunal, as it is normally available for a judicial review in the High Court?

Vera Baird: Will it be quicker and cheaper? One imagines that it will be cheaper, because the informality of the tribunals makes them quicker, generally, than courts. Whether they are quicker depends on listing, the number of cases and the backlog in the upper tribunal. Granted that there is frequent discussion about shortages of judicial manpower in the High Court, one imagines that it is likely that cases could be heard more quickly. However, I cannot say more than that. I am told that judicial reviews are being got to court quite quickly now. That is not what it used to be like. I can give no promises as to whether the process will be quicker, but it ought to be cheaper.
The hon. Member for North Southwark and Bermondsey asked me about legal aid. That is an important point. There is not, on the face of it, a right to legal aid in the tribunal system. I have raised that matter and I will write to the hon. Gentleman, if I may, with a more comprehensive answer. There are situations where it is probably not necessary, but there may still be situations that he would continue to be concerned about, so I shall write to him.

Simon Hughes: I am grateful for the Minister’s generically helpful answer. I have experience of, and am involved at arm’s length with, a judicial review application at the moment on a Government decision to close the 24-hour emergency clinic at Maudsley hospital. The application was made some weeks ago and nothing has happened yet, so my honest view is that judicial reviews do not always swing into the courts on the next day after the application—although some may be quicker.
This is an important matter. The presumption should be that a judicial review for somebody who does not have the resources should be legally aided, whichever tribunal is dealing with the matter. Depending on the Minister’s answer, we would be keen to reserve the right to return to this matter. There is general concern about some important cases currently in tribunals. I hope that we can reach agreement and, if not, I give notice now that we may be able to work together to achieve an amendment on Report that would deal with the concerns.

Vera Baird: There are always applications with exceptional circumstances where ministerial discretion should be exercised. Certainly, if I were being asked to exercise such discretion in respect of an important technical case, one would expect it to be exercised benevolently. It is not a desert at present.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.

Clauses 16 and 17 ordered to stand part of the Bill.

Clause 18

Limits of jurisdiction under section 15(1)

Henry Bellingham: I beg to move amendment No. 55, in clause 18, page 15, line 3, leave out ‘to’ and insert ‘, 2 and’.

John Bercow: With this it will be convenient to discuss amendment
No. 56, in clause 18, page 15, line 16, leave out subsections (6) and (7).

Henry Bellingham: This clause is important and we have decided to table some amendments to it, because there is an overwhelming argument for judicial review cases in the upper tribunal to be heard only by a High Court judge. There was substantial debate about that in the other place. Clause 18(8) says:
“a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or...such other persons as may be agreed from time to time between the Lord Chief Justice”
and so on. This amendment seeks to delete paragraph (b) which gives power to appoint someone other than a High Court judge. Why do we feel strongly about it? For a number of reasons—

John Bercow: Order. I fear that the hon. Gentleman is eliding into another group of amendments with which the Committee is not currently dealing. I am sure that he has done so inadvertently. I say that in the most courteous terms and hope that he will focus on amendments Nos. 55 and 56.

Henry Bellingham: I will most certainly do so, because you are absolutely right, Mr. Bercow, to correct me. Subsections (6) and (7), which we are seeking to remove, lead on to the next group of amendments. Forgive me for entering into a wider discussion about High Court judges.

Vera Baird: The amendments would remove the ability of the High Court to transfer any class of case to the upper tribunal for the purposes that we have already started to discuss. It would be for the Lord Chief Justice, with the agreement of the Lord Chancellor, to designate classes of cases for which the upper tribunal would have sole responsibility and for the High Court to decide other cases, as and when they arise. That seems the right balance. The initiative is with the judiciary throughout, which again seems correct.
If the amendments were carried, it would not be possible for a class of cases to be transferred. The whole power would not have been excluded, but it would have to be exercised on a case-by-case basis. That seems a wasteful use of judicial resources. As I said, the power is intended to be used only in fairly technical cases. Classes of cases would be more likely to be moved when there were good technical reasons to do so and not otherwise. It seems sensible to have that power so that a tranche of cases, which might be similar or which might have the same technical components, could go over at once, instead of each case having to be considered separately.
The Lord Chief Justice is content that he can define a class of case of this nature. Therefore, we should not gainsay that by saying that each and every individual one ought to be considered separately. I hope that it is the judiciary’s approval and support, which I have now brought to the Committee, that will facilitate the hon. Gentleman’s seeking to withdraw his amendment.

Henry Bellingham: I apologise for jumping the gun. I did not look closely enough at the groupings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Henry Bellingham: I beg to move amendment No. 57, in clause 18, page 15, leave out line 23.

John Bercow: With this it will be convenient to discuss the following amendments: No. 58, in clause 18, page 15, line 25, leave out from ‘Session’ to end of line 29.
No. 59, in clause 19, page 16, line 13, leave out ‘and 4’ and insert ‘, 4 and 5’.
No. 60, in clause 19, page 16, line 15, leave out ‘and 4’ and insert ‘, 4 and 5’.
No. 61, in clause 19, page 16, line 37, at end insert—
‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.
No. 62, in clause 19, page 17, line 1, leave out ‘and 4’ and insert ‘, 4 and 5’.
No. 63, in clause 19, page 17, line 3, leave out ‘and 4’ and insert ‘, 4 and 5’.
No. 64, in clause 19, page 17, line 25, at end insert—
‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.

Henry Bellingham: I certainly take the view that it makes sense to refer judicial review matters to the upper tribunal. The Opposition broadly support what the Government are trying to do. We feel that it makes sense and in some ways is an overdue step.
Nevertheless, this is an area of great importance. In the past, the power to grant judicial review has been confined to the High Court. We should look at the phrasing of the Bill and the way in which the term “judicial review” has been put in inverted commas in clause 15. The reason why judicial review is so important is that it allows the individual citizen to challenge the decisions of Departments and of other public bodies. Judicial review cases are often extremely high-profile. One thinks of certain recent cases that have hit the headlines, and of the occasions when previous Home Secretaries have been overruled on judicial review, such as when Mr. Justice Collins overruled the Home Secretary on a matter of anti-terrorist law.
Given the history of judicial review and its importance in our whole legal system and our constitution, I share the view of many other Conservative Members that there has to be a High Court to keep the Government in check by means of the judicial review process. An important aspect of the fulfilment of that function is that High Court judges decide such vital issues. If the Bill proceeds as it stands, however, matters could be decided by
“such other persons as may be agreed from time to time”.
Obviously, those other such persons will not be High Court judges, although they will be hugely eminent and experienced, and the agreement on who they are will be made between the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, or, as the case may be, the senior president of tribunals. I do not suggest for one moment that they will not be of the highest calibre, nor that they will lack the advice of experienced people. Maybe the Opposition are being purist. However, there is a significant body of opinion in legal circles to the effect that the decisions should be made by High Court judges, that that is what the Bill should say expressly, and that the words that I have quoted should be removed. If they were, the Opposition would be far more content.
Only in rare circumstances will it be the case that such key judicial review applications do not go before a High Court judge—once or twice a year, maybe. Perhaps the Minister will tell us how often she expects that to happen. It might be only once every five years. However, those few cases could be of overwhelming importance, and in those circumstances we believe that it would always be appropriate for them to be heard by a High Court judge.
 The Minister, and the Department for Constitutional Affairs, might well say that there are not enough High Court judges around and that there will at all times be insufficient such judges to take on the task. However, if there is such a shortage, and if there is an argument that more are needed, there is a vast pool of talent out there. We shall shortly be debating the widening of the pool for judicial appointments. If the DCA’s position is based on unavailability of High Court judges, my response is that there are easily enough people around with the serious talent and intellect to fill the spare places on the High Court bench.
 If the Government are concerned about a lack of judges, they should make one or two additional appointments, which would immediately remove the administrative concern about such a lack. We could then put the Bill to Her Majesty in due course knowing that a very important part of our constitution had been preserved. The ability for such cases to be properly heard has been a part of our legal system for a very long time indeed. It provides the modus operandi whereby citizens of this country can actually challenge the Executive in cases that go to the root of our freedoms. I might be getting slightly carried away, and it might be that the matters that will come from tribunals on judicial review will not be anything like as weighty as I have suggested, but they could be. Given the types of issue that tribunals deal with day in, day out, it might well be that from time to time there will be appeals on judicial review that are pretty fundamental to the citizens of this country, our electors and our constituents. That is why we feel strongly that, at the very least, the Government should give a further explanation than the one that they gave in another place. We need to be satisfied that there is an overwhelming reason why the Bill cannot state that High Court judges will exclusively hear the applications.

Simon Hughes: I added my name to the amendment because I share the strong views that are held about this matter. So far judicial review is carried out only by the High Court, but using the relatively newly developed opportunity in this country, people can use administrative law to challenge the Executive. Citizens have the opportunity to go to the independent judiciary to challenge the Executive. The Executive could be a Secretary of State, an agency, a Department or an official of the Government. That principle, certainly in the early days of the newly structured Tribunals Service, should be subject only to the judgment of someone who has the authority of a High Court judge. Clause 18(8) and its condition 4 give flexibility for other appointments.
Of course, people acting in the best interests of the system and the post holders, such as the Lord Chief Justice, the Lord President, the Lord Chief Justice of Northern Ireland and the senior president of the tribunals, will obviously consider such matters wisely. However, it should be not for them, but for us, to decide the matter. A lot of things in the Bill could be dealt with by secondary legislation or even rules of court or tribunals, not primary legislation.
 However, what we are discussing should, first, be dealt with by legislation and, secondly, retain its present position. It is an innovation. It will give tribunals in the upper tier that we are creating the power to deal with judicial review applications. They are matters in which decisions are of major significance. They could go to the highest authorities in the land, so my request is for the Minister to reconsider the matter and accept that for the time being and for the first five or 10 years of the system, such a provision should be excluded. The best way in which to do that is to support the amendment. If later experience suggests that we can change things, we can return to the matter in the fullness of time. I would far rather that we struck out the provision now and kept the authority of the High Court for judicial review. I support the amendment.

Vera Baird: We do not agree. I agree with the hon. Member for North-West Norfolk that the current provisions will guarantee the highest calibre of judiciary in the upper tribunal to deal with judicial reviews. I also agree that there is a significant pool of talent able to be appointed, but this is not about personnel availability, but about flexibility.
The hon. Gentleman asked how many cases we expect to be dealt with. We expect there to be a mixture. The Lord Chief Justice will second some High Court judges to the upper tribunals. They will do some of the work, but many of the cases will be dealt with by the expert judges who are already in the upper tribunal. As my noble Friend Baroness Ashton explained in the other place, we regard a blanket requirement saying that a High Court judge is necessary for every judicial review in the upper tribunal as neither desirable nor necessary. The lengthy debate in the other place resulted in a clause that now encapsulates the principle that judicial review should be heard only by those judges who have the experience and expertise to do so. The clause would not do that by limiting the judges to those who are currently hearing judicial review in the courts.
I should emphasise that both the senior president and the Lord Chief Justice agreed that the amendments are workable and practical. I do not agree with the hon. Member for North Southwark and Bermondsey, who said that in this case the allocation of judges ought to be done by legislation; I think that it is better done internally, by the judiciary itself.
I would also point out to the hon. Member for North-West Norfolk that deputy High Court judges now hear judicial reviews. Sometimes they are circuit judges and sometimes they are QCs who are not judges at all, so we are not exactly striking out on a new line.
The hon. Member for North-West Norfolk has discerned a significant body of opinion in legal circles that the ability to decide on judicial reviews ought to be confined to High Court judges. I should tell him that the Lord Chief Justice is not a member of that body of opinion. He states:
“Some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative”
—imperative—
“that there is flexibility in relation to the circumstances where cases should be transferred to the Upper Tribunal, and flexibility as to who they will be heard by. That flexibility would be disturbed if the Bill was to include a provision limiting such cases to High Court judges, regardless of the relevant circumstances of the case. There are some persuasive examples of cases where judges of the Upper Tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases have, for example, been mentioned in the course of our discussions.”
Of course, we would expect special commissioners of income tax and social security—people who might hear judicial reviews in their own area of technical expertise—to be people of the highest imaginable calibre, as the hon. Member for North-West Norfolk said. However, flexibility is imperative, so I invite the hon. Gentleman to feel persuaded to withdraw his amendments because they are opposed by the Government.

Henry Bellingham: The Minister quoted from the Lord Chief Justice and put an important point of view on the record. However, we should continue to discuss the matter because it is of fundamental importance. I am conscious of the fact that if we talk about it for too long in Committee, we might jeopardise our chances of returning to it on Report. I am grateful for the Minister’s response and the wise words contained in it, in which spirit I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 to 21 ordered to stand part of the Bill.

Clause 22

Tribunal Procedure Rules

Henry Bellingham: I beg to move amendment No. 65, in clause 22, page 19, line 38, at end insert—
‘(za) that the interests of justice are achieved,’.

John Bercow: With this it will be convenient to discuss the following amendments: No. 66, in clause 22, page 20, line 1, after ‘expressed,’, insert—
‘(da) that the tribunal system complies with the European Convention on Human Rights,’.
No. 68, in clause 22, page 20, line 5, leave out ‘(4)(b)’ and insert ‘(4)’.

Henry Bellingham: This is a modest point and concerns the powers to make procedural rules for tribunals. A number of categories are set out in clause 22(4)(a) to (e), which we think could be strengthened by adding an expression relating to the achievement of the interests of justice. I imagine that the Minister will say that the achievement of the interests of justice underlies every measure in the Bill, but I would suggest that having the words contained in amendment No. 66 in the Bill would send an important message and that the Bill would be stronger as a consequence.

Simon Hughes: There are three amendments in this group and I want to speak specifically to amendments Nos. 66 and 68. The hon. Member for North-West Norfolk moved amendment No. 65. I anticipate that the Minister will say that that amendment does not materially change what is currently in 22 (4) (a), which also talks about justice. However, does she not agree that the amendment is slightly wider and therefore slightly better? Also, an important point in the amendment establishes that every part of the judiciary and the judicial process complies with the European convention on human rights, which states that people must have access to justice and a fair trial—either civil or criminal. The amendment is a link to amendment No. 67, which comes in the following group.
When we come to debate the next group, which is specifically about legal aid provisions, it is important to see the amendments as part of the debate about access to justice and compliance with the European convention. If the Minister can satisfy us that all aspects of the tribunal system have been checked and proof read for ECHR compliance, as every Bill is required to be, and that all the rules issued to the tribunals are satisfactory, then we will have to accept that for the time being. Does she not think that it would be better to have that sort of statement within the Bill? In that context, I want to ask the wider question. For those who know the workings of the civil and the High Courts relatively well, they will know that there are two books of rules that are used by all practitioners, including judges and lawyers. One is a large white book for the High Court and the other a smaller green book for the lower courts, which is known as the county court book. Many of the rules governing the courts are in those two books rather than in primary legislation. Why, in this case, was the judgment made to put slightly more of the detailed rules into primary legislation than Governments normally wish to do? Is there an exact comparison that has been done to make sure that we are doing here what we have already done in the High Court?
I’m always keen that we have Bills that are as short and as simple as possible. Matters that are entirely technical should be in secondary legislation—unless they are of significance—and in rules if they are of importance to practitioners but not to members of the public. I would be grateful to know what led the Minister to make the judgment that we need as much of the regulation of the process in primary legislation, of which clearly this is part.

Vera Baird: Amendment No. 65, which was moved by the hon. Member for North-West Norfolk, adds an interest of justice test to the list of principles that the tribunal procedure committee should keep in mind when making rules. Lord Kingsland, the colleague of the hon. Member for North-West Norfolk, moved an amendment with exactly the same effect in Grand Committee in the House of Lords. The Government accepted, as I do now on behalf of the Government in this House, its general intention in principle. An alternative more in keeping with the drafting of the Bill was offered to Lord Kingsland and he tabled the draft on Report, which is now clause 22 (4) (a). It would be extraordinary to add to the Bill the alternative which Lord Kingsland rejected in favour of 22 (4) (a). Therefore, I do not think that we should entertain the prospect of doing that.
 The hon. Member for North Southwark and Bermondsey gave almost the same answer that I have given to amendment No. 65, although he asked whether the provision proposed by the hon. Member for North-West Norfolk was not wider and therefore better. However, Lord Kingsland was satisfied that the term “ensure that justice is done” was just as good as “acting always in the interests of justice”. I am inclined to agree.
On the further amendments to which the hon. Gentleman spoke, it is exactly as he said. Of course, the tribunal system and the provisions of the Bill have to be convention-compliant. As the hon. Gentleman said, all Bills have to be considered in detail to ensure that they are compliant, and they are considered in that way before the Minister—in this case, me—signs to say that they are compatible with the European convention. To add something saying that the Bill shall comply with the European convention is pointless. As the hon. Gentleman, who is an experienced Committee member, knows, if something odd and unnecessary is included in a piece of legislation to make things clearer, the next piece of legislation that does not include it is always called into question. There is nothing to be gained from adding such a thing to the Bill and it would add not one iota to its human rights calibre.
 Amendment No. 66 would ensure that the rules are compliant with the ECHR. One could say that they may have to be all the more compliant than the legislation. The legislation could be declared incompatible if it were not compliant and, anyway, hon. Members would not want to bring into play legislation that was not convention-compliant. Subsidiary legislation could be overturned by the judiciary if it were not compliant, so the tribunal procedure committee will have to ensure that it is convention-compliant.
Is there more detail about this matter in the Bill than is normal? There is no intention that that should be so. We intend the level of primary and secondary legislation to be broadly similar to that which is customary. I invite the hon. Member for North-West Norfolk to ask leave to withdraw his amendment.

Henry Bellingham: In the light of what the Minister said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Henry Bellingham: I beg to move amendment No. 67, in clause 22, page 20, line 4, at end insert—
‘(4A) The Tribunal Procedure Rules shall make provision for the granting by a judge of the First-tier Tribunal of legal aid for appropriate advice and representation in relation to any decision within the jurisdiction of the tribunal system.’.

John Bercow: With this it will be convenient to discuss amendment
No. 69, in clause 22, page 20, line 4, at end insert—
‘(4A) The Tribunal Procedure Rules may allow for the provision of legal aid.’.

Henry Bellingham: The amendments, which both say basically the same thing, would give the Minister a degree of choice. They would introduce a provision whereby the tribunal procedure rules may allow legal aid to be granted by a judge of the first-tier tribunal.
We are having a wide-ranging and, at times, passionate debate about the way in which the legal aid changes proposed by the Government are being implemented. I do not want to go down that route. However, it has struck me for a while as slightly bizarre and unfair that people cannot get legal aid for cases in tribunals, except in a few circumstances. There are a number of exceptions. I gather that in the Lands Tribunal, for example, people can get legal aid. Perhaps the Minister will comment on whether legal aid is available in other tribunals.
We should not like to include in the Bill the power to grant legal aid automatically, because that would be a step too far. I am well aware, as are other Opposition Members, of the pressures within the Department for Constitutional Affairs. We realise that there are pressures on the legal aid budget, which has increased from £1.5 billion 10 years ago to more than £2 billion, and we understand why the Government are now bringing in means-testing in magistrates courts and the fixed-fee system for many civil cases. Although we have some legitimate discussions and arguments with the Government about how that is being implemented, we accept the thrust of what they are doing. However, in respect of tribunals, I should imagine that it would be appropriate for legal aid to be awarded only in a very small number of cases.
A lot of the time lawyers are not wanted in tribunals. We want people to take their case to tribunal and feel that they are performing and presenting their arguments in an informal and relaxed manner, and that they can put their case without any pressure or undue sense of the occasion getting on top of them or stifling their free expression and explanation of the problem. I submit that lawyers often come along and make the matter a whole lot worse. They can give the client a lot of ideas, stand up and make boring speeches on points of law, whereas what we want is for the public to go to those tribunals and feel that they can have their cases heard sympathetically and understandingly by tribunal chairs who can emphasise with the public.
I would have thought that, in the vast majority of cases, there would be no need for the provision of such legal aid. However, there are going to be tribunals—I certainly came across a few during my time at the Bar—in which there are points of laws and complexities. There may even be situations in which a particular case suddenly becomes multi-faceted and unanticipated factors suddenly come into play.
In those circumstances, it might be in the applicant’s interests to seek legal advice. For example, there might be a fairly straightforward case in the Employment Appeal Tribunal, or one of the other tribunals such as the Asylum and Immigration Tribunal, where the case is proceeding quite smoothly and it all looks straightforward, but complexities then arise. At that stage, will the applicant be denied the ability to deal with the matter on a roughly level playing field?
I submit that there will be cases in which respondents might be a corporate entity or a Department. One has only to look at those families in various cases involving the Ministry of Defence. In one case, the MOD employed a host of lawyers and QCs. I am thinking not about a coroner case, but about a tribunal case for injuries caused not in the front line, but during training. I read that the Department in question had a battery of lawyers and the case went from being quite straightforward to being complicated. Yet, the family were unable to get legal aid.
If the tribunal rules allowed for the grant of legal aid by the judge in the first-tier tribunal, it would at least mean that the applicant had a much fairer deal and would not have to suddenly abandon the case. The applicant might be completely overwhelmed by paperwork, legal points and legal statutes that they have absolutely no idea how to handle, however sympathetic the tribunal judge or its non-legal members might be to them.
Despite the expertise and the background of the people involved, and however much they might try—the Minister has made a great deal of their attitude and their desire to help the public and be as open, flexible and user-friendly as possible—things might become very difficult if one starts getting bogged down in technical legal matters. Precedents might need to be looked at and other tribunal decisions might need to come into play. It might be that such factors are not always something that the tribunal judge can help the applicant with.
That is why legal aid might be appropriate in a small number of cases. In that small minority of cases, building such flexibility into the system would bring significant relief to the applicant. It would make the system fairer and more just for a very small number of applicants and cases. I do not believe for one moment that it would have a significant impact on the legal aid budget. When we look at that budget in the round—I might now be told off by our shadow Chief Secretary for making a spending commitment—it is clear that we are talking about a small sum of money. I am a great believer, as are my hon. Friends, not only in getting the best value possible, but in using public money to make a difference to some of the more oppressed and vulnerable people in society.
A number of hon. Members have spoken about how tribunals are very often the only point of contact that members of the public have with the judicial system. The chances are that the tribunal system is the only interface that many of our constituents will ever have with the judicial system, unless they happen to end up in a magistrates court for some minor criminal offence. People who go to tribunals are not criminals; they are applicants—people pursuing their case to try to secure justice for themselves and their families.
We have given the Minister a choice of two amendments, which I hope fits in with the spirit of the Committee. Both amendments are by definition broad and flexible. In fact, amendment No. 69 is more flexible than amendment No. 67. I hope that the Minister will accept the amendments not only in the interests of providing extra assistance and making the system more open and flexible, as the new structure will do, but to ensure that no one is in any way excluded from putting their case.

Simon Hughes: This is probably the most important amendment that we have debated so far. It has the support of the Liberal Democrats, the Conservatives and, I hope, some on the Labour Benches. Even hon. Members who are not lawyers, as some of us are, will have come across in their constituency work cases in which the decision of a tribunal cites legal cases. That goes for both the oral and subsequent written tribunal decisions. In tribunal hearings in which lawyers are present—the system is not set up on the presumption that lawyers will normally be present—there is often quite robust debate about the application of cited cases, which could be judgments from the House of Lords, the European Court, the Court of Appeal and so on. Judgments from the Employment Appeal Tribunal or a higher court that dealt with an employment appeal case might also be cited. It is therefore sometimes necessary for people to have legal assistance to be able to put their arguments.
Some people go to tribunals literally on their own, with no support, and some go with family support, friends or non-legal support from their local advice centre or citizens advice bureau or whatever. Normally, people will go with no lawyers accompanying them, which is as it should be. The best person to judge whether people should have an entitlement or need to receive legal aid is the person running the tribunal—the judge figure whom we have discussed. I have signed my name to amendment No. 67, would give such discretion to the judge, and amendment No. 69 would have the same effect.
The Minister said that there are provisions for Ministers to grant legal aid exceptionally, but that is an exemptive decision. The Opposition are arguing that in the interests of justice it is necessary, and would be better, for the granting of legal aid sometimes to be a judicial decision. Such decisions could be made on the spot, with the judge having assessed the nature of the case and rated a person—the lay applicant—and their ability to put their case against a representative of the Department for Work and Pensions or whoever is on the other side. There is often an official on the opposing side of a tribunal who is fully versed in the legislation and regulations, and who carries a double ring binder file. The tribunal itself will have ring binder files, as will the clerks, and they will contain information on the law, not only matters of fact.
There are strong arguments for the amendments, and it is clear to us that a system of fair access to justice must ensure that people are not disadvantaged. It is good that we are to have a new, streamlined, expanded tribunal system. However, if this area of administrative law is to be separate from the court system, the possibility of people getting legal aid should not be less than in the elements of the legal system that consider matters of criminal, civil and other areas of administrative law.
As the Minister said, magistrates do not deal only with crime. They deal with administrative and licensing matters, civilian disputes and family law, in all of which there is an entitlement to legal aid. There is a strong case in principle for such issues. The proposed approach would not be an open door. We are not saying that we want legal aid as a matter of right for  tribunal cases, but arguing that it should be the norm that the judge on the case has the power to make such a judgment.
 Yes, there is a financial implication, but justice always has financial implications. I hope that the Minister will not resist the amendment on the basis that it would have an unhelpful or harmful financial implication. There have been debates elsewhere on legal aid and its budget. I accept that it is larger than in some places and that it has grown. However, it has not grown in the same way as much of the welfare state has grown. It has grown less, and there is a strong case for justice being done with legal aid when the judge thinks that that is right. I hope that the hon. and learned Lady will be sympathetic to the amendment. It is certainly something that we want to pursue.

Vera Baird: I shall deal first with the latter two points made by the hon. Member for North Southwark and Bermondsey. It is not the case that the legal aid budget in the United Kingdom is larger than in some places. It is larger by a very significant factor than anywhere else in the world. I shall leave it there, having made that important point.
 I sympathise enormously with the passion with which the hon. Gentleman and the hon. Member for North-West Norfolk assert the right for fairness in access to justice. It is a passion that I share and which the Government accept entirely. It is a bit of an oddity that the hon. Member for North-West Norfolk has sought to introduce such a provision when an identical amendment was defeated resoundingly in the other place, because the Tories did not vote for it. However, that does not alter the merit in its being discussed today.
I shall reiterate the points made during the debate in the House of Lords. The tribunal system is intended and designed so that people should not, as a rule, need lawyers to pursue their points. As we have said in a different context today, tribunals are not courts. Unlike courts, most tribunals do not rely on the strict rules of evidence. They adopt a much more inquisitorial approach, questioning the user to find out the relevant information rather than expecting him to put his case or present an argument. Granted the high level of skills that we have acknowledged in tribunal chairs, the majority of tribunal users should be able to, and can with experience, relay their evidence by answering questions without the need for legal representation.
For those who qualify within the legal aid system anyway, legal help is available across the whole gamut to give advice and assist the users to prepare their cases and answers to questions that might be asked. Legal advice can be obtained about points of law and help can be received to pay for counsels’ advice. That does not present a problem. Aid is readily available in that fashion and it can pay for everything up to its limit to prepare a person for a tribunal, short of their actually being represented.
 Both hon. Gentlemen argued strongly that we do not want lawyers to be in tribunals as a matter of course. The right hon. Member for Berwick-upon-Tweed (Mr. Beith), the Chairman of the Select Committee on Constitutional Affairs, said the same on Second Reading: we do not want representation in tribunals as a matter of course. I am glad that both Opposition spokesmen understand and share that view.
We must ensure that people have enough information as users, so that they understand that they can get advice if they need it and understand what they need to do to ensure that they put their best foot forward. We will work on that.
We acknowledge that legal aid for representation has a role in some tribunals. It is not available in the Lands Tribunal now, but it is available in the Asylum and Immigration Tribunal, the Employment Appeals Tribunal, the Mental Health Review Tribunal and in cases of special difficulty in all tribunals. If a case falls within the provision that I have mentioned already—section 6(8)(b) of the Access to Justice Act 1999—legal aid can be granted exceptionally for representation. That will apply in a minority of cases, because in most circumstances tribunal users should not need representation for a just outcome. None the less, legal aid is available in exceptional circumstances, as we have already discussed.
 I imagine that, if a case suddenly became more complex than anybody could have predicted, one of two things would happen: either the inquisitor judge would adjourn so that legal help could be obtained—along with counsel’s advice or whatever were necessary to ensure that the legal points that emerged were advanced in a proper fashion in the applicant’s interests—or he would write, as many coroners do, in support of an application for exceptional circumstances, so that a Minister could consider granting legal aid. With those two fall-back positions available, the situation is not immensely troubling.

Simon Hughes: I hope that the Minister accepts that both situations happen as a matter of practice sometimes.

Vera Baird: I do.

Simon Hughes: Both would require a delay, as the case would have to be interrupted and the application would have to be considered, then accepted or rejected. If a judge is able, at the beginning of a case or at any stage, to assess whether a case would need legal aid, to make the decision then and implement it would be much quicker for the tribunal and much quicker and more certain for the individual in terms of the remedy. It is the judge who can assess that. Experienced judges will be able to make such assessments on the spot.

Vera Baird: The hon. Gentleman slightly contradicts himself. If it is obvious to the judge at the beginning that a case is complex, an adjournment in the middle, with a consequent delay, will not be necessary, because he can make it clear that legal aid should be made available and he can either suggest that the applicant seeks legal help or he can support an application for exceptional circumstances. Given the experience and calibre of tribunal judges, it would be a rare case that suddenly multiplied out of all recognition into a complex legal issue, thereby meriting an application in the middle of it. However, if that were so, everybody’s view would surely be that it was essential that the person had the opportunity to be represented. In such an extremely rare case, it would undoubtedly be the norm for the inquisitor judge to adjourn and support an application for full legal aid or advise the applicant to get legal help. We would like to do more. I think that I said that clearly on Second Reading.
Like the hon. Member for North-West Norfolk, I do not want to stray into the generality of legal aid reform at present, but it is well known that we intend to put lawyers on to fixed fees for standard cases, starting very soon this year, with only exceptional cases being paid for by the hour thereafter. That should make the legal aid budget become more predictable, which would strengthen our arm in respect of having resources available to be moved over.
It would be our intention, as I have said time and again—and I have no difficulty saying it once more—that such resources should move over into the welfare sector, with which the tribunals basically deal. Whether representation in tribunals is the right place to put those resources or whether they are put elsewhere would be a matter for discussion at that point. I hope that Opposition Members will accept that there is an adequacy of provision within the present system and that when resources are made available by the reforms that we are currently implementing, the intention is to put them into this sector. I hope that the hon. Members will withdraw their amendment, which was, as I have already said, resoundingly defeated in the House of Lords and I fear will suffer the same fate in Committee.

Simon Hughes: Has the Minister the figures—either numbers or costs—that tell us how many cases under the present regime are given legal aid through the exercise of ministerial discretion? What sort of number is it for the past year?

Vera Baird: I cannot help with that. I know that I get one or two cases a fortnight to determine. They are mostly coroners’ inquisitions with the occasional tribunal case. I do not know whether that is a fair representation, but we will look into it and give the information to the hon. Gentleman if we can.

Simon Hughes: I was being generous and trying not to divide the Opposition by not reminding the hon. Member for North-West Norfolk that his party did not support the proposal in the other place. However, I am glad that such enlightenment has come its way as the Bill has moved down the Corridor. That is always to be welcomed. Progressive conservatism often moves more quickly now than it did in the past.
I am very clear that this is right as a matter of principle and is something that we should pursue. I heard what the Minister said on Second Reading and accept her intention that this is an area of law in which practice will feature and in which the Government hope there will be more resources to assist with legal aid and advice as appropriate. I want to make one comment on the practicality of the arrangements, which the Minister cited as her explanation why we do not need the system at the moment. If an issue was spotted on the papers by the judge at the very beginning of a case, then it would require the hearing to stop and start and be adjourned and start again. It may even put back the date when a case is dealt with. When the papers arrive at the tribunal in the normal way and an issue is spotted, there will be a delay, even if it is not the interruption that we are talking about. If a legal case arises during the hearing, then that is interruption and delay.
In any event, it seems that that process is one that takes away the discretion that judges could properly have—through hearing the argument and seeing the nature of the applicant—to determine a case. On paper, an applicant may appear to be competent and able to represent themselves. However, they may not be well; they may be mentally, physically or emotionally ill. There are all sorts of circumstances that are not intrinsic to the case, but may become evident. The person may become distressed. They may have a poor attention span, not be very intelligent and not able to understand things. It seems to me that those are the sorts of reasons where the discretion should be given to the tribunal there and then. I am very keen that we pursue the matter and I hope that the hon. Gentleman will agree with me.

Vera Baird: It might be wise to rehearse the basis on which exceptional funding is given because it will cover most of what the hon. Gentleman is worried about. It is given, first, if there is a significant wider public interest that the user be represented—that is rather aside from what he is saying—and, secondly, if the case is of overwhelming importance to the user or if a lack of representation would lead to obvious unfairness in the proceedings. Those two provisions are likely to cover all the situations which would produce injustice if they were not covered, as the hon. Gentleman has set out. Thirdly, it is given if it would also be practically impossible for the user to bring or defend the proceedings without representation. I think that he will find that there is already provision for exactly what he is worrying about, although not in the hands of a judge, but in the hands of the executive.

Simon Hughes: I understand that. I have in mind a case involving an allegation of unfair dismissal that I have been dealing with and which I chose as the subject of an Adjournment debate on behalf of a constituent. The case was clearly a matter of significance to the individual, who had been summarily dismissed from the job that he had been held for 25 years. The Minister is right that there are exceptions, but as she rightly said, they are not granted at the instigation of a judge. It seems that that is a good place for them to be.
One could start with the same set of criteria. Obviously, some cases are much more likely to get ministerial certification, where a judge spots that it is of prospective national interest, in that it will determine what the law will be in future and will have wide-ranging implications, and deals with a controversial issue. Such cases are likely to get through the system but, from the perspective of the individual, cases in which people lose their jobs or something happens that significantly affects their finances might be another category.
I am not arguing about whether the criteria are more or less correct; I am arguing that the judge should have the opportunity that has been outlined. That is not a million miles away from what the Minister would like to happen in future. Here is the legislation that gives us the opportunity for that to happen. I hope that we have persuaded the Committee that it should happen now.

Henry Bellingham: If one considers the high-cost and highly complex cases that receive legal aid, costing the legal aid budget millions of pounds, it becomes clear that we are talking about a small crumb in the trouser turn-ups of one or two High Court judges. It is a small amount of money, but it would help a number of people.
There are three points that I should like to raise with the Minister. She mentioned the changes in the legal aid budget and the reforms that the Government are introducing, the bulk of which we support. We can see exactly where the Minister is coming from and we can see the need for reform. If the reforms lead to significant savings, could Ministers redeploy the legal aid in other directions—including to tribunals, for example—simply by ministerial edict or would that require a statutory instrument? Doing that would certainly not require primary legislation, but would it require an order in the House? Could Ministers simply take such redeployments on board? If so, we would feel that we could push them on the issue.
Amendment No. 67, to which the hon. Member for North Southwark and Bermondsey has added his name, would not exactly put a huge amount of extra pressure on the legal aid budget. We are talking about flexibility and the final decision being in the hands of the tribunal judge. The first-tier tribunal judge would make the decisions and the rules would allow legal aid to be granted in rare circumstances.
The Minister mentioned the rule on exceptional cases that enables the tribunal chair to adjourn proceedings and recommend that legal aid be granted. I would have thought that there would be an inevitable delay, but she has not yet told the Committee what sort of delay there would be. I take on board her point that if it becomes apparent before the tribunal has started, or even on the first day, that exceptional circumstances apply, it might make sense for the tribunal to be adjourned and for a decision to be made on legal aid. However, if the tribunal is adjourned halfway through because of the complexities that the hon. Gentleman mentioned, how long would it take to get the legal aid set up? I imagine that that would take at least three to four weeks, in which time there would be a great deal of added uncertainty, stress and worry.
We want to make the tribunals as user-friendly as possible, but there will always be stress and strain on the applicant. The amendment is modest and does not ask for a great deal. Its public expenditure implications are absolutely minimal. As I said, we are talking about a small fraction of what is spent from the legal aid budget on the high-complexity cases. We Conservatives would certainly want to consider the issue in the context of our ideas for reorganising legal aid. It would be a minor step forward.
Will the Minister answer those points? If she does not do so in a way that we find satisfactory, we may have to push the issue to a Division.

Vera Baird: The hon. Gentleman is right in saying that primary legislation would not be required to change the legal aid rules. The Lord Chancellor has a power to change legal aid—presumably the funding code. Legal aid is covered by a funding code, so that could be done by the Lord Chancellor’s direction.
I pause to thank the hon. Gentleman very warmly for saying that his party supports the bulk of the legal aid reforms that we are implementing. I am most grateful for that; his support is extremely welcome.
As the budget levels out and comes under control under the impact of the changes, we will need a review of how best and earliest to start using that other money in the welfare benefit sector. That is how we should consider the use of that money; representation for certain tribunals in certain circumstances might well be one way forward. However, there may be other priorities to roll out first. To a large extent, that is why the amendment is not acceptable.
In the extremely rare situation conjured up by the hon. Gentleman, the judge would have looked at his case file and considered how he would deal with the tribunal hearing. He would do that well ahead of time. Perhaps he would require information to be ready for it; perhaps, in writing or some other way, a sort of informal pre-trial review would have to be held to tee up the way forward. Such things all happen. If, having done all that, he had failed to see that there was a complexity, we would be in the territory conjured up by the hon. Gentleman. However, when I set out the process, he can see that it is pretty unlikely that that would happen, save once in what used to be called a blue moon.
If what the hon. Gentleman envisages did happen, one of two things might occur. First, the tribunal chair—soon to be called a judge—might adjourn so that the individual can get legal help. The judge might think that the person needs not representation, but advice on a particular point of law. That adjournment would enable the individual to go to a supplier of legal services—a citizens advice bureau, legal centre or solicitor—that would already be available and empowered to grant legal help, subject to a simple means test, which is done quickly. If legal help were needed, that could be obtained quickly.
Secondly, the tribunal chair might think that actual representation is necessary. That would require an adjournment while some communication—a letter or note from the judge or applicant—was sent to the Legal Services Commission, which would have to recommend that the exceptional circumstances power be used by Ministers. As soon as it had considered the issue and made the recommendation, the issue would come before Ministers. Such applications are often urgent. There need be no very significant delay, although I agree that it would be much better if such a situation were avoided. In 99 per cent. of cases, I am sure that it would be.
I hope that I have satisfied Opposition Members that there is adequate provision and an intention to look again when our now well supported legal aid reforms come to the fore. I hope that I can persuade the hon. Member for North-West Norfolk to seek leave to withdraw the amendment, which was abandoned by his party in the Lords.

Henry Bellingham: The Minister has said that there is every possibility of coming back to the matter of legal aid being available once the reforms have moved on. I feel that the amendment would hasten that process, so I shall press it to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Clause 22

Tribunal Procedure Rules

Question proposed, That the clause stand part of the Bill.

Brooks Newmark: I shall try to be reasonably brief, because I appreciate that we have more to do. I have always felt that one of the benefits of coming into the House is that we can learn from each other. One thing that I have learned from the hon. Member for Wolverhampton, South-West (Rob Marris), who I am sorry to see is not a member of the Committee, is to look at the explanatory notes, which I have done in detail as the debate has gone on. Paragraph 124 on page 21 states that the purpose of the “overriding objective” stated in clause 22(4) is
“to ensure that the Tribunal Procedural Committee observes certain fundamental principles when exercising its powers to make procedural rules, such as, securing that justice is done in proceedings before a tribunal and that the tribunal system is accessible and fair.”
The explanatory notes stop there, but subsection (4) goes on. Paragraphs (a) and (b) run in parallel with the construction of the explanatory notes, stating
“that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done...that the tribunal system is accessible and fair”.
However, another phrase is then tagged on, saying
“that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently”.
Paragraph (e) also uses the phrase
“are handled quickly and efficiently.”
How do we square the concept of “quickly and efficiently” with being “accessible and fair” in seeing that justice is done? The words “quickly and efficiently” suggest to me that there is not due care and consideration. I am trying to understand the language in the Bill. Perhaps it will happen later, when we have the further consultation that the Minister has talked about, but how can we have inherent in that provision some concept of due care and consideration that fits in with the concept of something happening quickly and efficiently?

Vera Baird: The explanatory notes make it clear—and they are right—that the important underlying principle is that the laws should be put together so that justice is done and the tribunal system is accessible and fair. It is a curious idea that if it can also be quick and efficient there is somehow a clash between the two. Justice delayed is well known to be justice denied, so we intend to deliver the process as speedily as is compatible with our obligations under the first two rules. To equate efficiency with not giving due care to justice seems an over-urgently arrived at elision. The word “and” and not “or” appears in all the provisions, which will need to be compatible with one another. There is no clash between them, and they are all very desirable.

Simon Hughes: The Minister said earlier that it was the Government’s intention that the division between primary and secondary legislation rules should roughly replicate what is done in relation to the court system. I do not need a reply now, but will she ask her officials to check that that is the case? I sense—I have not made the comparison—that this is quite a detailed legislative provision and it could be weeded out a little. I would be content to leave that for she and her officials to look at.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 23

Practice directions

Henry Bellingham: I beg to move amendment No. 70, in clause 23, page 20, line 22, leave out subsection (6).
The clause is about practice directions. Subsection (1) states:
“The Senior President of Tribunals may give directions”
in some circumstances. Subsection (6) states:
“Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following—
(a) the application or interpretation of the law;
(b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal.”
Hon. Members will have observed that under subsections (4) and (5), the senior president of tribunals can give practice directions only with the approval of the Lord Chancellor. In subsection (6), however, there is no such qualification. As I mentioned, in subsection (6)(a), the senior president of tribunals is entitled to give directions on the
“application or interpretation of the law”
without any reference to the Lord Chancellor.
With great respect, Mr. Bercow, you were not at this morning’s sitting when the Opposition made a number of references to the Lord Chancellor and the Constitutional Reform Act 2005. With reference to the appointment of judges, we felt that the Lord  Chancellor should not have any additional powers because those were effectively taken away from him in that 2005 legislation. It is another matter, however, when it comes to practice directions. We wonder why the scope of the senior president is being cast more widely in this case. That depends, to some extent, on the statutory intention behind the power to give directions on
“the application or interpretation of a law.”
On the face of it, the provision looks a wide discretion and as if the senior president can direct tribunals on matters of law that ought in principle to be within their sole compass.
The amendment is an amalgam of a probing and a genuine one. Will the Minister explain carefully why the clause is drafted in this way? I am concerned that the current draft introduces a blurring at the edges regarding a practice direction on the one hand, indicating a methodology for applying or interpreting the law, and on the other hand, a danger of trespassing on the substance of the application or interpretation.

Simon Hughes: I want to make two brief points. I am also slightly mystified by the inclusion of such a provision. If there are to be practice directions about the application and interpretation of the law, which are pretty important directions, logically they should have the authority of the Lord Chancellor rather than not. Given that the others do, it seems that we are taking out a group of practice directions that are just as important. They are not about internal workings, but about how the law should be interpreted. I am surprised about that, but the Minister might enlighten us and we may discover something that we did not spot. Subsection (6)(b) does not trouble me nearly as much.
It is important that people have access to the rules governing tribunals. When people are seeking out planning law, they have to go down the waterfall of decisions from regulations under the law that have been made nationally to planning guidance that is set regionally and locally. They then might know what is likely to happen to their application for their extension. Where, at present, do people find consolidated up-to-date practice directions? Can the Minister give an undertaking that, under the new regime, there will be a place where politicians and anyone in the country can see, in electronic form on a website or, more importantly, in a paper-based form at their local library, the current extant practice directions set out in chronological and numerical order and in a way that is comprehensible and easy to understand? Such directions are often important bits of the system and they should be made clear for the lay person as well as practitioners.

Vera Baird: I shall now deal with the substantive points of clause 23 and return to the question of ensuring that the practice directions are available. The point of directions in clause 23(1), which cannot be made without the approval of the Lord Chancellor, is that they are about practice and procedure respectively in the first tier and in the upper tier. It is appropriate that the Lord Chancellor should sanction them because they could have resource implications, for  instance, if the practice and procedure became to hold a pre-trial review of the sort that I have conjured up. It is important that the Secretary of State, who is responsible for the budget of the Department, has a say in that sort of practice direction.
Surely the opposite is the case—this is the point of subsection (6)—on directions or guidance about the application or interpretation of the law, let alone the making of decisions by members of either tribunal. It is there that the Constitutional Reform Act 2005, which removed the Lord Chancellor as head of the judiciary, has its bite. It is slightly surprising that the hon. Member for North-West Norfolk, who has so far been championing its bite, now seems to have gone into reverse.
As a Minister, it would be inappropriate for the Lord Chancellor to be involved at all in the making of practice directions about the interpretation of the law, as that should be carried out by a tribunal chair, or the making of decisions by tribunal members. Those matters should rest firmly and clearly with the judiciary and, in this case, with the senior president of tribunals. Otherwise, there will be a danger of fouling the independence of the judiciary.
I can tell the hon. Members for North-West Norfolk and for North Southwark and Bermondsey that, as far as I can see, the formulation in this part of the Bill follows literally word for word the Lord Chief Justice’s direction-making power under schedule 2 of the Constitutional Reform Act 2005. It requires the Lord Chief Justice only to give directions, along the lines of clause 23(1) in the Bill, with the Lord Chancellor’s consent, but it excludes the need for the Lord Chancellor’s consent when he is making directions for the application or interpretation of the law or the making of judicial decisions. Both hon. Gentlemen were clearly satisfied by that wording in the earlier statute, and I invite them to accept the same here.

Simon Hughes: I might have missed one thing, and perhaps I should have asked a question about it when we discussed clause 2. I take the Minister’s point about the independence of the judiciary; I was probably misrepresenting where the accountability should be. Under the new system, will anyone in the hierarchy be senior to the senior president of tribunals? Is the senior president not in some way subject to the Lord Chief Justice as a more superior judge in England and Wales? If that is the case, the Minister is implicitly right that the Lord Chancellor should not, for the reasons she gave, be the person holding the clearance on the interpretation of the law for practice directions, and it should be the Lord Chief Justice. Perhaps she will elucidate the matter. I had assumed—I could be completely wrong—that if one looked at the judicial hierarchy after the implementation of the Bill, one would still see the Lord Chief Justice at the top and the president of the family division and other people with specific responsibilities, including the senior president of tribunals, under him. Perhaps she will tell me whether that is correct.

Vera Baird: No, the senior president of tribunals is not accountable to the Lord Chief Justice. The senior president is separate and independent, and also, therefore, not accountable to the other chief justices whose jurisdictions his post will cover.
 I was asked about publicity for practice directions. The practice directions will be published on the web. There will be a tribunals website—indeed, I believe that there already is a Tribunals Service website—on which practice directions will be published. Many tribunals publish practice directions on the web, such as those relating to the special commissioners or civil procedure. The commissioning policies of individual libraries will determine whether they make hard copies available. We will look at the matter with every intention of ensuring that people going unaccompanied to tribunals have all the information that they need to fight a fair fight, as it were.

Henry Bellingham: I am grateful to the Minister for that reply. With practice directions we are dealing with a complex and technical area, but she has explained the measures with great courtesy. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Mediation

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I have one question on the clause, which I otherwise support. In some parts of the country, including my own borough, there are well established, well used and respected mediation services that deal with many of the issues that are covered by tribunals. Do the Government envisage that either in the legislation or subsequently, the mediation service provided by the Tribunals Service as described in the Bill, will include, incorporate or link with well established, recognised and respected mediation services? I understand that the first step in the process might involve a mediator inviting opposing parties to talk to one another before going to tribunal. If Ministers or officials have not thought about that before, will they do so now?
There is some very good mediation practice out there. I was talking to my hon. Friend the Member for Cardiff, Central, who said that as far as she knows there is no such service in the middle of Cardiff. The mediation service in Southwark is by repute one of the most long standing and best regarded. Rather than creating new bodies, we ought to be folding in existing provision for mediation. I would like there to be a link between the tribunal and a mediation service. That way, a tribunal could tell someone that it would like them first to talk to the mediation service, which could subsequently report back when it had done what it could. In such a situation, the mediation service would be linked to and recognised by the tribunal.

Vera Baird: The provisions in clause 24 are enabling provisions, so they can embrace any kind of mediation. Most immediately, the Government have in mind mediation by tribunal members and staff, which seems to be a wise way forward, but there is absolutely nothing to prevent the involvement of community mediators such as the those to which the hon. Gentleman referred. I know of  one such very good scheme in Wandsworth. The county court in Manchester had an excellent scheme that is now being rolled out in other areas and which might be included.
Essentially, mediation is fairly high on our agenda. Clause 24 was added in the House of Lords by the Opposition, not because we did not want mediation, but because we did not think it necessary to include a clause to enable it. That is exactly what it does; it will enable mediation and we will encourage it in whatever form is best for the parties.

Question put and agreed to.

Clause 24 ordered to stand part of the Bill.

Clauses 25 to 28 ordered to stand part of the Bill.

Clause 29

Costs or expenses

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: First, I should like the Minister to explain clause 29(5), which mentions “wasted costs”, which are
“costs incurred by a party...as a result of any improper, unreasonable or negligent”
behaviour. She will have been contacted by organisations such as the CBI and the Institute of Directors, which are concerned about vexatious claims being brought, particularly in employment tribunals. The vast majority of cases are totally genuine, but some will be vexatious. Does the clause enable the tribunal to award costs against the applicant if the judge decides that the case was, in all circumstances, vexatious, unreasonable and without any proper merit?
Secondly, I should like to ask a question that is appropriate at this stage, because we are talking about costs and expenses, albeit in the context of applicants to the tribunal. The Minister will have seen the note from the Association of Clerks to the General Commissioners of Taxes for Great Britain. The role of the clerk will disappear and these clerks will effectively be made redundant, because the tribunals will be brought into the new Tribunals Service. There is concern that there may not be proper provision for compensation for loss of office. I see you nodding, Mr. Bercow. I hope that I am in order on this matter. This is simply a query for the Minister to consider. Under the changes to the rights of coroners, part-time coroners will be getting compensation when they are made redundant. Why is there no provision for these clerks in the Bill? Has the Minister got something up her sleeve to ensure that they will, at some stage, receive proper compensation for loss of office?

John Bercow: The nod from the Chair signified nothing more nor less than the fact that the hon. Gentleman was indeed in order.

Vera Baird: On the specific point about wasted costs, it would not be right for me to elaborate on what is meant by clause 29(5)(a), which states:
“In subsection (4) “wasted costs” means any costs incurred by a party...as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative”.
That is a fairly self-sufficient definition. Clause 29(2) states:
“The relevant Tribunal shall have full power”
totally
“to determine by whom and to what extent the costs are to be paid.”
There is sufficient ambit in the clause for the whole issue of conduct and costs to be aired. [Interruption.] Actually, I see now that this is a much more dire provision than I had thought; it is to direct that legal representatives who have wasted costs may pay, so perhaps the hon. Member for North-West Norfolk has also misread it. It is not likely to be a source of concern for the CBI, for instance, that lawyers should be required to pay costs. Perhaps we shall adjourn our consideration of mischievous actions by individuals until we get to the right part of the Bill.
 My understanding is that clerks to the commissioners, for instance, are office holders, not employees, so they would not fall within any redundancy cover. There is the issue of the draft Coroners Bill, which would not abolish the existing system, but terminate existing coroners’ appointments. It would not abolish the role, so there is no statutory provision for compensation in that case; there would be no redundancies, in the sense that the role would not stop existing. Provisions in the Coroners Bill provide a mechanism to pay compensation, although no commitment has been made on the level of compensation or the underlying principles that might be used to establish that amount.
The proposed enabling legislation is similar in scope to that in the Taxes Management Act 1970, providing for compensation to clerks who lose office or emoluments as a result of boundary changes. I hope that the hon. Member for North-West Norfolk feels that that has clarified the position; if he does not, I shall write to him and set it out more fully.

Henry Bellingham: I am grateful to the hon. and learned Lady. I hope that it will be appropriate for me to drop her a note explaining in more detail the views of the Association of Clerks to the General Commissioners of Taxes for Great Britain, so that its point of view will at least be considered and dealt with.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.

Clauses 30 to 36 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clauses 37 and 38 ordered to stand part of the Bill.

Clause 39

The general duty

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: We move on to chapter 4 of the Bill, which is entitled “Administrative matters in respect of certain tribunals”. Clause 39(3) states:
“The Lord Chancellor must annually prepare and lay before each House of Parliament a report as to the way in which he has discharged his general duty in relation to the tribunals.”
As we are talking about a brand new, consolidated system that we hope will provide and deliver a far better service to the public, a lot of expectation is building up. I know that this is a matter for the usual channels, but we want in due course not just a written statement but an oral statement to the House. I hope that the Minister will now say more about how she feels the annual statement should be presented and how important she feels it will be.

Simon Hughes: Will the Minister say what she expects the cost of the new system to be in its first year of operation?

Vera Baird: I will write to the hon. Gentleman about the cost. The duty that subsection (3) places on the Lord Chancellor is identical to that which he has in respect of the courts. The provisions mirror section 1 of the Courts Act 2003. One would expect the format of the report and the procedures that follow it to be exactly the same. Those procedures have proved acceptable under the 2003 Act, which holds great promise, I would have thought, for the new provisions to be acceptable in future.

Question put and agreed to.

Clause 39ordered to stand part of the Bill.

Clause 40

Tribunal staff and services

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I should like to ask a question about clerks to the General Commissioners of Taxes. I have received a letter from the treasurer and secretary of the Association of Clerks to the General Commissioners of Taxes, which other members of the Committee might also have received. It said:
“The General Commissioners of Income Tax are a Tribunal which deals with appeals and other matters concerning income and corporation tax. We have been operating since 1797 and our role has evolved to keep pace with the changes in our taxation system.
Our panels are made up of lay members assisted by a suitably qualified Clerk who attends to the correspondence before and after the hearing, arranges for the hearing itself and advises the tribunal on matters of law. We also deal with appeals against their decisions when this happens.
Under the Tribunals, Courts and Enforcement Bill our existence disappears and the tribunal becomes absorbed in the new Tribunals Service. The role of the Clerk disappears completely. There are currently 244, mostly part time, Clerks throughout the UK many of them are retired lawyers, Inspectors of Taxes or businessmen. We are employed by the General Commissioners but paid by the Department for Constitutional Affairs.
In the new Bill there is absolutely no provision for compensation for loss of office. We are trying to negotiate for some compensation but, as things stand, there is no provision at all for us to even negotiate...It is natural justice that some form of compensation for loss of office is made when a job disappears and the current legislation (The Clerks to General Commissioners (Compensation) Regulations, 1973) provides for that, when Divisions are merged or boundaries are altered, thereby making a Clerk redundant. Clearly it was thought appropriate then to compensate a clerk for losing his Division. It follows that this should apply when all Divisions are merged into one, as it were, and all Clerks become redundant.
If you require any further information, please do not hesitate to ask. However, we notice that the Committee stage of the Bill is scheduled to conclude not later than 27 March. We have no time to lose.
Yours sincerely,
Susan Balchin
Secretary”.
As a short postscript, hon. Members may have had occasion to be grateful to the clerks to the commissioners of Revenue when they have been summoned to appear before the commissioners to deal with their tax affairs in this place. It would be invidious of me to ask whether you had been, Mr. Bercow, and I would not expect you to reply, but I certainly have and I know that other colleagues have, too. The Revenue has always been particularly attentive, and its staff and the clerks to the commissioners have in my experience always been helpful. Twice during my life I have had to avail myself of their services. Susan Balchin has made a good case on behalf of herself and her colleagues. I should be grateful if the Minister could answer her concerns. There are 244 people with an interest. I hope the Government are minded to be helpful to them. If those people lose their jobs, I hope that the Government will also be minded to ensure that they are treated fairly, in the same way that others in similar positions have been treated.

Vera Baird: I hope that I can briefly reassure the hon. Gentleman by saying that my noble Friend Baroness Ashton has agreed to meet the Association of Clerks about the issue, so that it can be thoroughly discussed. I could tell him again about the Taxes Management Act 1970, but the lady who has written to him will know all about that. He should perhaps rely on the agreement that the noble Baroness will discuss the matter with the association.

Simon Hughes: I am reassured by that. Depending on the outcome, we might want to return to the matter on Report, so will the Minister ask Baroness Ashton, if possible, to complete that meeting and any negotiations by that stage? That would give us the opportunity to introduce amendments if we think that they are necessary to ensure that these people are properly looked after.

Vera Baird: I am happy to ensure that my noble Friend hears the sentiments that have been expressed.

Question put and agreed to.

Clause 40 ordered to stand part of the Bill.

Clause 41

Provision of accommodation

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I have just one question. There has been a long running drive promoted by Members from all parties to ensure that courts remain local in all our communities—in your county, Mr. Bercow, in Norfolk, in Wales and in rural and urban areas. What is the plan to ensure that the Tribunals Service, under the new arrangements, is geographically accessible to people in each of the counties of England and Wales and to ensure that that is done in a way that minimises costs for attendance, travel and inconvenience? We are talking about an administrative legal service, and it is not much good if it takes a long time to get to, is a long way away and costs a lot to travel to. I want to be reassured about the plan for the geographical arrangements for the service throughout England and Wales.

Vera Baird: It is intended that there should be a tribunal location in every significant centre. It is clearly not practical to have them in very small areas, when they have such diverse jurisdiction. I hear what the hon. Gentleman says about courts being closed, but other community courts are being opened in different localities. I imagine we will see the use of technology increasing in tribunals hereafter. Clearly, people might not be able to travel to a centre, for example when disability is an issue. It seems inevitable that there should be video provision. When we refer to the senior president having a duty to consider innovative ways to ensure that the tribunal functions, that is what he is likely to consider. That is the plan at the moment. I suspect that there is likely to be some sharing between the Courts Service and the Tribunals Service, but the intention is to have an installation in every major centre.

Simon Hughes: I am encouraged by that. It is important not only that facilities are shared intelligently—an example could be found in Somerset, where hon. Friends have argued that the magistrates court needs to be retained and where there would be an opportunity to have the magistrates and county courts and the Tribunals Service in one place—but that innovative arrangements are made for both tribunals and other offices that the public need to access to use those services. I hope that the Minister will consult on and be responsive to that, and that as the plans are drawn up they will be consulted on, not least with parliamentary colleagues across the United Kingdom, so that they can be as user-friendly and helpful as possible.

Question put and agreed to.

Clause 41 ordered to stand part of the Bill.

Clause 42

Fees

Question proposed, That the clause stand part of the Bill.

Henry Bellingham: I shall be brief. I mentioned vexatious applicants earlier, when we discussed the section relating to costs and expenses. I presume that I ought to have raised that point under clause 44, but I seek clarification that the judge can award costs against a vexatious applicant. The clause mentions fees, which are presumably fees that can be charged to applicants. Will the Minister clarify that?

Vera Baird: This is, I think, about fees and not costs. It is about paying the court fees, so possibly the hon. Gentleman is just a tad off target again.

Simon Hughes: When will the fees that are provided for in the clause be published and what consultation will there be about the publication of the new fees under the new system?

Vera Baird: I cannot give the hon. Gentleman a date of publication. The fees will be published in due course. What is important for the hon. Gentleman to know is that there is no intention of permitting them to impede access to justice. I am not sure what consultation is required in relation to fees, but I shall write to him about that.

Simon Hughes: I am grateful. I merely say that it would be helpful if there were the same system for assessing the amount that one might pay or for which one might receive an exemption or a reduction, as is the case in other situations. That way, people would not have to deal with different forms for tribunals from those with which they have to deal in other parts of the legal process.

Vera Baird: There is no intention of having any different priority from that which applies generally in the courts service. The Government do not believe that fees should be charged if they are likely to cause financial hardship. Affirmative resolutions would be needed before fees could be charged for the first time in respect of any matter, so there will be ample opportunity to discuss them if necessary.

Question put and agreed to.

Clause 42 ordered to stand part of the Bill.

Clauses 43 and 44 ordered to stand part of the Bill.

Schedule 7

Administrative Justice and Tribunals Council

Henry Bellingham: I beg to move amendment No. 71, in schedule 7, page 146, line 37, at end insert ‘or insolvency, or—
(a) that the member has been absent from meetings of the Council for a period longer than 6 months without permission,
(b) that the member has been convicted of a criminal offence, or
(c) that the member is otherwise unstable or unfit to discharge the functions of a member of the Council.’.
Paragraph 3 of schedule 7 is entitled:
“Term of office of appointed members of Council”.
 Sub-paragraph (1) says:
“Subject to the following provisions of this paragraph, a person appointed under paragraph 1(2) is to hold and vacate office in accordance with the terms of his appointment.”
Sub-paragraph (5) says:
“The Lord Chancellor may remove a person appointed under paragraph 1(2) on the ground of inability or misbehaviour.”
The amendment would add the words, “or insolvency”, which it seems to me would make sense; the tribunals council should not contain members who have been made insolvent, though maybe that would fall within “inability or misbehaviour”. It also covers certain other matters. The first is absence from council meetings for longer than six months without permission, which is a serious dereliction of duty. The second is conviction for a criminal offence. The third is instability or lack of fitness to discharge a council member’s functions.
I hope that the Committee will consider accepting the amendment because it would be nice to end the day with a minor triumph. We are being reasonable; we are giving the Minister the opportunity to clarify the meaning of “inability” and “misbehaviour”. It might be that one would be considered to have misbehaved if one had been convicted of a criminal offence, and it might be that one would be considered unable if one had been declared insolvent, but making it explicit would be a good idea.

Vera Baird: The same amendment was withdrawn in Grand Committee in the other place. As the hon. Gentleman has said, schedule 7 provides for the removal of appointees on the grounds of inability and misbehaviour. That is in line with the criteria for removing judges, so we think that it is the right approach. If it is deemed necessary to make explicit reference to specific kinds of misbehaviour or inability, that can be covered in the terms of appointment, for which provision is made in paragraph 3(1).
I am sorry to disappoint the hon. Gentleman that we do not accept the amendment, but let me reassure him that he has triumphed time and time again in the Committee by the clarity of his argument.

Henry Bellingham: I thank the Minister for those courteous words. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 7 agreed to.

Clauses 45 to 48 ordered to stand part of the Bill.

Schedules 8 and 9 agreed to.

Clauses 49 and 50 ordered to stand part of the Bill.

Schedule 10 agreed to.

Clause 51

“Relevant qualification” in section 50: further provision

Question proposed, That the clause stand part of the Bill.

Simon Hughes: I want to put it on the record that although there was some controversy on Second Reading and elsewhere, I am very positive about the proposals in this part of the Bill. It is right that there should be wider eligibility, which this part of the Bill and particularly this clause provide. I welcome that, as I welcome the Government’s intention of widening by gender and ethnicity the pool of people from which the judiciary is drawn. I am grateful to the Minister for giving me the latest information that I asked for this morning.
I want to share one amusing thought with the Committee. There are some helpful tables that set out, for example, the gender balance among the judiciary. I think we all know that in March 2004, there were 11 male Lords of Appeal in Ordinary and one female Lord of Appeal in Ordinary—Lady Justice Hale was the first woman law lord. However, it is amusing to discover that three of them are of unknown ethnicity. It seems to me that when people reach that level of seniority, they should be asked about their ethnicity or it should be noted. I know they do not have to fill in forms, which is understandable, but it does no harm to know about ethnicity in the higher reaches of the judiciary. As it happens, they are all white, but the day may come soon when they are not all white.

Question put and agreed to.

Clause 51 ordered to stand part of the Bill.

Clauses 52 and 53 ordered to stand part of the Bill.

Schedule 11 agreed to.

Clauses 54 to 56 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Michael Foster.]

Committee rose at twenty-four minutes past Three o’clock till Tuesday 20 March at a quarter to Eleven o’clock.